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Dolbin v. United States

May 11, 2010


The opinion of the court was delivered by: Chief Judge Kane


Before the Court is Movant Mark Dolbin's motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255. (Doc. No. 250.) Since filing his initial motion alleging ineffective assistance of trial and appellate counsel and improper jury instructions, Dolbin amended his § 2255 motion to add claims of ineffective assistance of counsel at his preliminary hearing. (Doc. No. 253.) For the reasons set forth below, the motion will be denied.


Movant Mark Robertson Dolbin was indicted on May 14, 2003, for conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine, as well as distribution and possession with intent to distribute 500 grams or more of methamphetamine. (Doc. No. 1.) The indictment was subsequently amended multiple times to include the charges of possession of firearms by an armed career criminal, obstruction of justice, and forfeiture, resulting in the fourth and final superseding indictment being filed on August 4, 2004. (Doc. No. 121.) Dolbin pleaded not guilty and went to trial, along with co-Defendant Ly Bun Mey, on March 7, 2005. (Doc. Nos. 127, 182.) On March 10, 2005, the jury returned a verdict against Dolbin on four counts: conspiracy to distribute and possess methamphetamine, distribution and possession with intent to distribute methamphetamine, possession of firearms by a convicted felon, and obstruction of justice. (Doc. No. 200, at 1.) The jury found co-Defendant Mey not guilty.*fn1 On July 25, 2005, Dolbin was sentenced to life in prison. (Doc. No. 199.) Dolbin successfully appealed that sentence and was re-sentenced to 240 months in prison on August 20, 2007. (Doc. No. 233.)

Dolbin filed a "consolidated application to proceed in forma pauperis" on February 1, 2008, in response to which this Court sent a notice of election. (Doc. Nos. 239, 243.) Dolbin returned the notice of election indicating his desire to file one, all-inclusive § 2255 motion at a later date. (Doc. No. 244.) Dolbin then filed a motion to extend time to file his § 2255 motion, but attached the "working copy" of his motion to vacate thereto. (Doc. No. 248, 250.) To preserve the filing date of the motion to vacate, the Court ordered that the attachment be docketed as a § 2255 motion and later allowed Dolbin leave to supplement the claims he had already included in his § 2255. (Doc. No. 253.) The Government has now responded to all of Dolbin's claims, and Dolbin has replied to the Government's arguments. Dolbin's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255, is now before the Court for disposition.


A. Ineffective Assistance of Trial Counsel

At trial, Dolbin was represented by Attorney Nicholas Quinn. Dolbin alleges that Quinn was ineffective for failing to move to sever the charges of conspiracy and drug possession from the felon in possession of firearms and obstruction of justice counts. (Doc. No. 251.) Specifically, Dolbin contends that revelation to the jury of his fifteen-year-old convictions "and other concomitant spillover evidence" was improperly prejudicial and contributed to the jury verdict against him. Dolbin also argues that Quinn should have moved to sever his trial from that of co-Defendant Ly Bun Mey. Dolbin admits that Federal Rule of Criminal Procedure 8 provides for "liberal joinder" of claims against one Defendant and joint trials against multiple Defendants, but argues that his counsel should have moved for relief from joinder and for severance pursuant to Rule 14 because joinder of the claims against him was, in this case, prejudicial.

To succeed on an ineffective assistance of counsel claim, a defendant must show that his counsel's performance was deficient, which is to say that it "fell below an objective standard of reasonableness," and that he was prejudiced by his counsel's deficient performance. Outten v. Kearney, 464 F.3d 401, 414 (3d Cir. 2006) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Because failure to establish either prong results in denial of a defendant's claim, a court may begin its analysis with either prong of the test. United States v. Cross, 308 F.3d 308, 315 (3d Cir. 2002). In assessing counsel's conduct, there is a "strong presumption" that counsel acted reasonably, and "a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 689-90. With respect to the prejudice prong, a defendant must prove that "there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Id. at 695.

1. Dolbin was not Prejudiced by Counsel's Alleged Errors

The Court takes up its analysis of Dolbin's claim with the prejudice prong of the Strickland test. Though Dolbin's brief suggests reasons counsel may have stipulated to his past convictions, moved to sever the claims against him, and moved to bifurcate the trial, Dolbin has not shown that, but for counsel's decisions on these matters, there is a probability the jury would have found him innocent of the crimes charged. This is true whether the Court considers the prejudice established by each of these alleged deficiencies individually or all the issues alleged cumulatively. See Fahy v. Horn, 516 F.3d 169, 205 (3d Cir. 2008) ("Individual errors that do not entitle a petitioner to relief may do so when combined, if cumulatively the prejudice resulting from them undermined the fundamental fairness of his trial and denied him his constitutional right to due process.").

The evidence that supports Dolbin's guilty verdict is, simply put, immense. The Government's first witness, Agent Tyer, testified that a man by the name of Roger Frey was discovered transporting drugs during a drug interdiction stop of a bus in Colorado. (Trans. 2 at 34-60.) Frey confessed to the crime and cooperated with the Government, eventually admitting that he was delivering the drugs to the person later identified as Mark Dolbin, a Pottsville, Pennsylvania resident. (Id.)

Next, Roger Frey himself testified. Frey confessed that he was transporting methamphetamine for Mark Dolbin. Frey testified that he met Dolbin through a cousin, saw him in possession of large quantities of cash, and knew him to be a methamphetamine dealer before they began working together. (Id. at 65-70.) Frey further testified in detail that he took a trip to California, purchased methamphetamine with money that was sent to him in pizza boxes, gave the methamphetamine to a man named "Blaze" to transport back to Pennsylvania, reconnected with Blaze in Pennsylvania, and then personally transferred four pounds of methamphetamine to Mark Dolbin. (Id. at 71-81.) Frey also testified that he purchased drugs for Dolbin a second time. Frey testified that for the second trip, Dolbin gave him $55,000 in cash to take to California to purchase five more pounds of methamphetamine. (Id. at 88-91.) Frey explained to the jury that federal authorities intercepted him in Colorado with the methamphetamine in his suitcase, but that he cooperated with the police and agreed to complete the drug transaction with Dolbin. (Id. at 91-97.) Under police surveillance, Frey called Dolbin to make arrangements for Dolbin to retrieve him, and the drugs, at the Harrisburg bus station. (Id.) Frey testified that Dolbin arrived at the bus station at the appointed time in a blackish Mercedes. (Id. at 96.) Frey stated that, while wearing a wire and being observed by police, he placed the luggage containing the methamphetamine*fn2 in the trunk of the Mercedes, and entered Dolbin's vehicle. (Id. at 96-97.) Frey testified that he was in the Mercedes with Dolbin when police officers attempted to stop the vehicle, and Dolbin evaded them by initiating a high-speed car chase. (Id. at 99.) Frey explained that Dolbin eventually abandoned the vehicle and fled on foot in an attempt to avoid arrest. (Id.) Last, Frey testified that Dolbin had used two firearms in the course of their transactions, one of which was a Streetsweeper rifle that Dolbin brandished for the purpose of showing Frey "that he had fire power." (Id. at 101-03.)

The Government also introduced a tape recording that was made of the conversation between Frey and Dolbin when Dolbin picked Frey up from the bus station. (Id. at 104.) That recording memorialized Dolbin referring to "crystal" and making "five out of four." (Id.) Frey testified that both of these references were related to methamphetamine. (Id. at 104-05.)

Next, the Government produced testimony from DEA Agent John Langan. Langan stated that he observed the controlled purchase between Frey and Dolbin at the Harrisburg bus station.

(Id. at 163-65.) Langan identified Dolbin as the man in the Mercedes who picked Frey up from the bus station, and stated that he observed the two depart the bus station together in the Mercedes with Frey's suitcase-and the sham methamphetamine-in the trunk. (Id. at 165-66.)

Lower Paxton Township Police Officer Alonzo Piper testified that he arrested Mark Dolbin when Dolbin was attempting to hitch a ride to Pottsville from a location two miles from the scene where the high-speed car chase had ended the previous day. (Id. at 170-71.) Piper made the arrest because Dolbin matched the description given by the officers involved in the chase of the man who had fled. (Id. at 172.)

DEA Agent Joseph Myers testified that he was also involved in the arrest of Mark Dolbin. Agent Myers stated that he tested the package of white powder initially found in Colorado in Roger Frey's luggage. The substance was determined to be approximately five pounds of crystal methamphetamine. (Id. at 175-78.) Agent Myers also discussed his observations of the monitored calls between Frey and Dolbin during which Frey made plans with Dolbin to meet at the Harrisburg bus station. (Id. at 182-83.) Myers further testified that he was part of the effort to follow Dolbin's Mercedes from the bus station, stop the vehicle, and arrest Dolbin. (Id. at 185-89.) Myers described the high-speed chase that ensued wherein Dolbin drove in excess of 100 miles per hour and into oncoming traffic in an attempt to evade police. (Id.) Agent Myers also testified that he later executed a search warrant on a storage unit rented in Dolbin's name. (Id. at 192.) In the storage unit, Myers uncovered two firearms and a stolen yellow Mercedes Benz with a broken trunk. (Id. at 193-94.)

Karlene DiCello, Dolbin's fiancée, also testified against Dolbin. She admitted that Dolbin called her after he was arrested and asked her to remove from their residence a gun and a scale.

(Id. at 211.) She had been unaware these items were in the home, so she asked James Connors, a friend of Dolbin's, to remove them. (Id.) DiCello testified that, even after Connors removed one firearm and a scale from the home, police executed a search warrant on the house and found approximately $10,000 in cash and another firearm. (Id. at 212-215.) DiCello also told the jury that, after Dolbin's arrest, he called to tell her that he had a yellow Mercedes in a storage unit and that there was money for her in the trunk. (Id. at 215-16.)

Byron DiCello, Dolbin's stepson, testified that he had been asked to remove "baggies" from his house at his mother's request after Dolbin's arrest. (Id. at 228-33.) He also revealed that he had once accidentally seen a cooler full of white powder at his home, though he could not confirm that the substance was methamphetamine. (Id.)

The Government next produced the testimony of Edward Hunt, Dolbin's cell mate at Cumberland County jail. Hunt testified that Dolbin gave him a note to hold during a cell search. (Id. at 235-37.) Hunt, in turn, gave the note to prison authorities. The note was addressed to "Jack," which is the name of one of Mark Dolbin's brothers. The note stated that Dolbin would have cash in ten days to pay an attorney and asked Jack to remove firearms being stored in his aunt's former bedroom in his mother's house. (Id. at 237.) The note also requested that Jack retain Attorney Dimitriou on Dolbin's behalf. (Id.) Attorney Dimitriou did in fact enter an appearance for Dolbin on June 5, 2003. (Doc. No. 14.) In a separate incident, Dolbin asked Hunt to collect approximately $60,000 in drug debts for Dolbin so that Dolbin would have money to pay his legal fees. (Trans. 2 at 239-40.) At the time, Dolbin and Hunt both believed Hunt was on the verge of being released. (Id.) Hunt testified that he wrote down the names and addresses of the two debtors from whom Dolbin told him to collect the money. (Id. at 242-43.) In later testimony, Cameron Dolbin confirmed that the two men identified by Hunt were known friends or acquaintances of his brother, Defendant Mark Dolbin. (Trans. 3 at 13.) Both notes were produced for the jury.

James Connors, self-described as Dolbin's best friend, testified next. Connors admitted that he removed a scale and a rifle from Dolbin's resident at DiCello's request, and that he eventually turned those objects over to the police. (Trans. 2 at 255-57.) Connors further stated that DiCello asked him to go to a storage unit rented by Dolbin to recover money from the trunk of a car located within. (Id. at 258.) Connors explained that, with the help of Mark Dolbin's brother, Cameron, and others, he broke into the storage unit and pried open the trunk of a yellow Mercedes. (Id. at 260-61.) He admitted that he recovered satchels containing over $40,000 cash, methamphetamine, and multiple handguns from the car. (Id. at 261-63.) He hid one satchel himself and gave another to Cameron ...

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